The Grand Takings - Four landmark cases

The Federal land legacy

The Grand Takings

Four landmark cases

By Stephen L. Wilmeth

            In Federalist Paper XLV, Madison downplayed the danger of accrued powers of the federal government over the various states. He began the task when he reminded the readers of the impious doctrine of the King which concluded that people were made for kings not kings for people.

            The doctrine which he helped frame upheld the concept that the “solid happiness of the people” was the new path. Madison could have dispensed with many words if he had halted after penning, “It is too early for politicians (the antagonists to strong federal government) to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued.”

Fast forward 225 years and we must wonder what President Madison would have thought when he saw paramilitary forces squared off against Nevada ranchers. Something suggests his first thought would not have been domestic terrorism. Surely he would have been aghast.

His argument was the federal government stood the risk of authority diminishment and not the states … not the people.

He qualified that position in XLVI when he suggested the downfall of the powers of the state would come only if “the visionary supposition that the Federal Government may previously accumulate a military force for the projects of ambition”.

Madison’s worry of federal diminishment didn’t happen. On the contrary, the “solid happiness of the people” theme was the anticipated loser.

The West test

On a big sky day in Nevada in 1979, the cleansing of western heritage accelerated.

That was the day Wayne Hage met Forest Service officials on his Pine Creek Ranch. Asking them what they were doing, they told him they were surveying water rights in the Monitor Valley for federal claims.

Hage was horrified.

His belief that vested grazing and water rights were tied to title succession since the mid 1800s would be shattered, but he wasn’t alone. That day started a marathon process that ultimately buried Hage, his two wives, and the hopes of thousands of rural Americans.

If there is any resolution after all these years, it must reflect in the legal judgment that Hage prevailed with his claim of water rights. The other rights were defused into minutiae of detail, legal technicalities, regulatory drift, and special interest corruption. The result did not equate to “the solid happiness of the people”.

American ranchers have been manhandled, terrorized, and broken under the federal juggernaut.

The Landmark Takings

 My view of the landmark takings has worn on me.

The persistent words “… nor shall private property be taken for public use, without just compensation” remain. They come from the closing clause of the 5^th Amendment. The phrase is not conditional.

There are four landmark takings that every American must archive in memory. Let’s continue with the Hage case.

The Hage Case. After taking stock in the actions against him, Hage petitioned the office of his State Engineer to qualify his water rights. That forced an adjudication that took ten years. It was fraught with Forest Service delaying tactics.

In 1991, Hage had enough evidence to file a takings claim. He made the claim his grazing permits, his water rights and the associated investments and infrastructure were private property rights for his full use and enjoyment. His position was strengthened by personal property tax schedules, mortgage and credit line collateral filings, and IRS interest and depreciation allowances.

Throughout the period, the Forest Service moved to solidify its position with public opinion campaigns and regulatory creep. That culminated in the intent to evict Hage through the cancellation of his grazing permits which, in turn, triggered the BLM to cancel its lands permits when the patchwork ownership of his ranch was disrupted by the withdrawal of the forest ranges and rotational plans.

It became a tag team effort.

Finally, in 1996 the courts ruled he could proceed with his takings claim. There were subsequent stories such as the entanglement of a Nevada Attorney General with the environmental front, three armed confrontations with body armored federal agents, the trespass of 104 cattle on forest land, and the dismissal of Hage’s attempt to demonstrate forage regrowth by the federal officials noting wrong grasses were present.

In the end, Hage was awarded $4.4 million only to have the ruling reversed by a US Circuit Court in 2013. Today, the Hage estate has not been compensated in the war waged upon it. The technicalities and the array of tools brought to bear continued to obscure the unsettling truths about degradation of the property rights. Through a process that lasted 35 years, yielded nine court rulings, and condemned actions of agency officials, the government did its best to break Wayne Hage.

The Laney Case.  In 1883, the Laney family started Laney Cattle Company in New Mexico’s Black Range. That preceded the establishment of the Gila Forest Reserve by 16 years and the admission of New Mexico into the Union by 29 years.

With the establishment of the United States Forest Service in 1905, the idea of “allotments” emerged. The Laney family saw their original voluntary participation adjudicated in 1907. They remained in operation through a period that saw many administrative changes that altered the intent of grazing and range rights and reduced any ability to create parallel enterprises and substantive economic improvements. Their treatment had no semblance of the Jeffersonian preferred phrasing of “pursuit of life, liberty and property.”

In 1985, the next generation steward, Kit Laney, bought the neighboring Diamond Bar Ranch from a bank. In the transaction, Laney capitalized the investment equating to 1188 head of cattle and assumed an existing demand, a memorandum of agreement (MOA) with the Forest Service, which required them to make substantial improvements in water and fencing infrastructure. Most of the demand was within designated wilderness. The MOA stated the Forest Service would allow mechanized assistance for making the improvements.

The Forest Service reneged. Environmental groups objected to the mechanical applications in designated wilderness. The agency capitulated and denied access.

Laney simply couldn’t accomplish the demands with hand labor and mules.

The shortfall of infrastructure improvements resulted in the Forest Service cutting his allotment numbers to 300 head. When the allotment came up for renewal, Laney refused to sign the document that reduced his permit by 75%.

He couldn’t operate with such a change.

In 1997, a court ruling indicated his cattle were trespassing. In 2004, Laney received notice the Forest Service was going to seize his cattle and shut his ranch down. That took place, Laney was arrested for using his horse as a deadly weapon, and he served time in prison. His entire life was devastated.

The federal government … broke Kit Laney.

The Clark County allotments. The notoriety regarding Cliven Bundy has been extensive so we shall focus on the bigger story. That is the story of the loss of some 50 other allotments in that Clark County and Virgin River country of Nevada.

Like the Bundy case (cattle numbers reduced by half), those ranches were eliminated in a stepwise reduction of numbers. The nominal issue was the desert tortoise. As demonstrated in the Hage and Laney takings, the reduction of numbers equated to inability to operate. Collapse was inevitable.

The agencies have become masters of making it so expensive and constrained to operate ranches cannot succeed. They go broke or they sell to conservation organizations and disappear into the populous. The federal government either makes them willing sellers or … breaks them.

The ultimate taking

The ultimate taking took place in New Mexico back in1944.

That taking, beyond any and all similar 5^th Amendment takings in the West, demonstrates the fear the Founders had in not vesting citizenry in the sanctity of private property. It reflects how and what will happen when those rights are conditional or limited.

In 1922, Aldo Leopold visited the Gila National Forest.

One day he rode out onto the western flank of Black Mountain and was awestruck.  He witnessed the grandeur of the headwaters of the Gila with the Mogollons to the southwest, the Black Range to the east, and the Pinos Altos Range to the south.

As that year played out, he got the opportunity to interact with the Shelley family, which had arrived on the south face of the Mogollon front in 1884. In that family’s speech, he heard the use of the term, wilderness. That was the term they actually used for their range “lying north of the high ridge on a line from 74 Mountain to Shelley Peak”. That was the wilderness that became the wilderness nomenclature in establishing the Gila Wilderness by Forest Service regional office administrative action in 1924.

Leopold took the term from the Shelleys.

There is every reason to believe he was further inspired by their fascination and respect for that homeland. He accepted their courtesy and hospitality and he set in motion the forces that would destroy them in 1944.

The drought of the late ‘20s, the Depression, and the settlement of the Peter McKindree Shelley estate destocked their wilderness of cattle, but it was the arbitrary actions of the United States Forest Service and then Gila Forest supervisor, L.R. Lessel who maneuvered to eliminate grazing rights that equated to 5000 cattle in 1930 and 0 in 1945. The removal of allotment numbers of that magnitude in war time had to raise eyebrows, but it must be assessed as an act of contravention intent in 2014.

In 1948, Lessel was overheard to say all cattle would ultimately be eliminated from national forest lands. That comment and the plight of the Shelleys lingered. In a hearing on the Wilderness Act in 1964, New Mexico’s Elliot S. Barker arose and asked Senator Clinton P. Anderson how many more ranchers were in line to be evicted with his legislation. Anderson assured him none and the phrasing “the grazing of livestock, where established prior to September 3, 1964, shall be permitted to continue …” was inserted. The United States was called to task, but senatorial leadership wanted nothing to do with righting the wrong that had already destocked the Gila Wilderness.

As agent of the United States, Lessel broke the Shelley family. He demonstrated the repeated propensity by agency managers to assume divine and lofty designs of empowerment each and every time federal tracts of the commons are assigned to them.

That family serves as the vanguard to the litany of uncompensated, dismissed, and discredited personal property takings since, and, as such, they must be recognized as … the first family of American wilderness.

Stephen L. Wilmeth is a rancher from southern New Mexico. “The Shelley taking demonstrated the natural occurrence of the wilderness syndrome in a constitutional void, the Hage taking revealed the expanded body of eviction tools, the Laney taking demonstrated the application of those tools and the outcome of an individual standing alone, and the Clark County takings demonstrate the general apathy of the nation toward the sanctity of private property rights in general … Madison was wrong.”